Protected States: The Political Status ofthe Federated States ofMicronesia and the Republic ofthe Marshall Islands

Edward]. Michal

On 24 April 1991 the US Foreign Broadcast Information Service reported that Germany had decided to recognize the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), two western Pacific island nations freely associated with the United States (FBIS 1991). Germany, the colonial master of both territories between 1899 and 1914, made symbolic amends by becoming the first European state to proclaim its intention to establish diplomatic relations with both nations. Well before the German move, however, four foreign embassies had been established in the Federated States and one in the Marshall Islands. Both nations were admitted to the United Nations in September 1991. Stewart Firth's argument that neither is sovereign (Firth 1989,75) can no longer be sustained. A theory that accounts adequately for international recognition of the two countries is needed. The German breakthrough was by no means the principal milestone in the two nations' campaigns to expand their presence in the international community. That distinction belongs to the late 1986 joint declarations between the United States and both states that the United Nations trustee­ ship agreement establishing the US-administered Trust Territory of the Pacific Islands was no longer applicable. The declarations concurrently implemented the Compact of Free Association, a bilateral agreement mutually binding the two nations and the United States. On 22 December 1990, the UN Security Council passed Resolution 683 (UNSC 1990), termi­ nating the trusteeship with respect to the Federated States of Micronesia and the Republic of the Marshall Islands. Resolution 683 set the stage for their admission to the United Nations.

The Contemporary Pacific, Volume 5, Number 2, Fall I993, 303-332 © I993 by University ofHawai'i Press

3°3 304 THE CONTEMPORARY PACIFIC. FALL 1993

Diplomatic efforts of both nations nonetheless enjoyed significant suc­ cess prior to Resolution 683. Between 21 October 1986-the date of com­ pact implementation for the Marshall Islands-and 22 December 1990, the Federated States and the Marshalls established diplomatic relations with each other and with such diverse nations as the United States, Japan, Australia, New Zealand, Chile, the Philippines, Israel, the People's Republic of China, and numerous South Pacific states (Zdanovich 1991, 4). They also were admitted to the International Civil Aviation Organiza­ tion, the South Pacific Forum, and the Asian Development Bank. Finally, Australia, the Philippines, and China established embassies in the Feder­ ated States, joining US embassies in both nations. It is tempting to ascribe these achievements to a dawning international acknowledgment of the right to self-determination of the peoples of these parts ofMicronesia. The 14 to I Security Council vote to terminate the US trusteeship over the Northern Mariana Islands, the Federated States of Micronesia, and the Republic of the Marshall Islands (ie, on Res 683) illustrated overwhelming international support for their self-determina­ tion. And the statements welcoming the council's action, notably by the People's Republic of China, the United Kingdom, and the former Soviet Union, emphasized that the people of both nations and the Northern Marianas had engaged in valid acts of self-determination (UNSC 1990). This emphasis on self-determination, however, begged the question of why so many nations had already recognized the two freely associated states. Engaging in an act of self-determination does not inevitably lead to sovereignty, as the case of the Northern Marianas, now a US common­ wealth, demonstrates. Numerous peoples and territories claiming the right to self-determination have failed to attain international recognition. The freely associated states would not have made such gains prior to the UN Security Council trusteeship termination had there not been compel­ ling reason for other states to accept their international personalities. This article explains why the Micronesian quest for international recog­ nition was successful. It discusses the origin of the concept of free associa­ tion; the Compact of Free Association; theories rejecting freely associated state sovereignty; Micronesian sovereignty; Micronesian independence; and the international relations of both nations. It concludes that the term free association no longer accurately describes the relationships of the Federated States of Micronesia and the Republic of the Marshall Islands with the United States. MICHAL. PROTECTED STATES

The author argues instead, drawing upon Alan James's Sovereign State­ hood (1986), that the implementation of the compact revived the all-but­ forgotten status of "protected states," that is, sovereign nations that have delegated part of their inherent powers to another nation. Furthermore, the protected states known as the Federated States of Micronesia and the Republic of the Marshall Islands are not only sovereign but independent, despite the seeming limitations of the compact and its subsidiary agree­ ments.

FREE ASSOCIATION

Free association as a political status originated in a series of efforts by the United Nations to encourage the transition of non-self-governing territo­ ries to self-governing status. These efforts took on special importance fol­ lowing World War II, when it was by no means clear that the victorious European colonial powers would willingly relinquish their overseas pos­ sessions. In 1953, the UN General Assembly passed Resolution 742 (VIII) to clarify when article 73 of the UN Charter no longer required a colonial power to report on non-self-governing territories. An annex listed the "Factors Indicative of the Attainment of Independence or of other Sepa­ rate Systems of Self-Government" and identified three principal status options: independence, what has come to be known as free association, and integration into a metropolitan state. That same day the UN General Assembly passed Resolution 748 (VIII) recognizing "the association of the Commonwealth of Puerto Rico with the United States of America has been established as a mutually agreed association." Puerto Rico did not fit neatly into any of the three categories established by Resolution 742, as pointed out by Clark. Resolution 748 nonetheless approved an end to US reporting on Puerto Rico under Article 73. The resolution was the first to recognize "association" as a status (Clark 1980, 41-46). General Assembly Resolution 1514 (XV), known as the "Declaration on the Granting of Independence to Colonial Countries and Peoples" (the Declaration) and adopted on 14 December 1960, emphasized the desirabil­ ity of non-self-governing states becoming independent, as opposed to attaining other possible statuses. As one observer noted, however, "The Declaration can be read as permitting nothing short of independence and is often so read by states which ignore a somewhat milder resolution ·.

THE CONTEMPORARY PACIFIC· FALL 1993 adopted the following day, Resolution 1541" (Clark 1980, 50). This com­ panion measure reaffirmed the acceptability of alternatives other than independence. General Assembly Resolution 1541 (xv) made a renewed effort to clarify when Article 73 reporting on non-self-governing territories could be discontinued. It defined the option of free association in far greater detail than did Resolution 742. The US government maintains that Resolutions 1514 and 1541 must be read as a single document (UNGA 1989, 8), demonstrating the importance the United States attaches to the latter's moderating influence on appeals to Resolution 1514. The first two entities to become associated states under Resolution 1541 were the Cook Islands and Niue, until then non-self-governing South Pacific island territories of New Zealand. The Cook Islands became freely associated with New Zealand in 1965, on passage by its Legislative Assem­ bly of a resolution requesting "New Zealand in consultation with the Cook Islands to discharge the responsibilities for the external affairs and defence of the Cook Islands." The New Zealand Parliament and the Cook Islands Parliament had previously passed the Cook Islands Constitution Act of 1964, containing the Cook Islands Constitution. According to Section 5 of the act, "Noth­ ing in this Act or in the Constitution shall affect the responsibilities of Her Majesty the Queen in right of New Zealand for the external affairs and defence of the Cook Islands, those responsibilities to be discharged after consultation by the Prime Minister of New Zealand with the Premier of the Cook Islands." The UN General Assembly approved free association for the Cook Islands in 1965 under Resolution 2064 (xx). Niue voters also backed free association with New Zealand in a 1974 UN-observed referen­ dum. The General Assembly accepted the Niue results by passing Resolu­ tion 3285 (XXIX) (Clark 1980, 54-60). The Cook Islands subsequently modified its constitution to assist in the development of external relations (Aikman 1982, 89-91). New Zealand itself has taken the position that "the exercise by the New Zealand Gov­ ernment of any responsibilities in foreign affairs or defence must be pre­ ceded by full consultation with the Cook Islands" (Aikman 1982, 93), in an effort to facilitate recognition of the international personality of the Cook Islands. 1 The United Kingdom, in contrast to the skillful New Zealand diplo­ macy at the United Nations, bungled a 1967 bid to decolonize several Caribbean territories. The General Assembly voted overwhelmingly (86 to MICHAL. PROTECTED STATES

° with 27 abstentions) to refuse to terminate Article 73 reporting require­ ments for the United Kingdom with respect to five associated states estab­ lished under the West Indies Act of 1967. The General Assembly, however, rejected the British failure to consult the United Nations in the decoloniza­ tion process (Clark 1980, 60-64), rather than the status of association itself. In 1970, the General Assembly, via Resolution 2625 (XXV), "The Decla­ ration of Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations," once again approved free association as a means of achieving self-governing status. It went even further by including "the emergence into any other political status freely determined by a people" as an outcome as acceptable as independence, integration, or free association (Leibowitz 1989, 507). This resolution in effect left it up to member states to decide how to deal with emerging political entities. How to handle associated states nonetheless continued to perplex sov­ ereign nations, multilateral organizations, and scholars. James Crawford, author of a comprehensive examination of statehood and sovereignty, observed, "It cannot simply be asserted that Associated States lack all international status. They are clearly not separate independent States, but equally they are not for international purposes merely part of the metro­ politan State." Crawford ultimately hedged that "the Associated State will acquire substantial international personality" (Crawford 1979, 376-377). The Cook Islands and Niue indeed have made significant progress in establishing multilateral personalities, but their bilateral personalities are far more restricted. Both are members of the South Pacific Forum (the Cook Islands was a founding member in 1971) and the South Pacific Com­ mission. Although neither has been admitted to the United Nations, both are associate members of the UN Economic and Social Commission for Asia and the Pacific (Jonassen 1983, Appendix B). The Cook Islands also has joined such specialized UN agencies as the World Health Organiza­ tion (USDS 1991, 325), the International Civil Aviation Organization (USDS 1991, 330), UNESCO, and the Food and Agriculture Organization (USDS 1991,317). On the other hand, the European Community rejected a Cook Islands bid to accede to the Lome Convention between the European Community and Asia-Caribbean-Pacific states (Aikman 1982, 93-94), a decision yet to be reversed. The Cook Islands and Niue have established bilateral ties with a num- .

THE CONTEMPORARY PACIFIC. FALL 1993 ber of nations, primarily in the Pacific. The Cook Islands also has signed several agreements with the United States (USDS 1991, SO-SI). Nonetheless, as of early 1992 there were no foreign diplomatic missions in the Cook Islands capital, Rarotonga, and only one consular office. Further ad­ vances in bilateral diplomacy are hindered by several factors: the retention of New Zealand citizenship in lieu of establishing separate Cook Islands or Niue citizenships (Aikman 1982, 88; Clark 1980, SS); the statutory vest­ ing of the foreign affairs power in New Zealand; and the small popula­ tion, remoteness, and relative economic insignificance of both states.

THE COMPACT OF FREE ASSOCIATION

The experience of the United States in negotiating free association with its only UN trust territory was bound to differ from the experiences of either New Zealand or the United Kingdom. The United States perceived Micronesia to be far more important to it strategically than the tiny dependencies of New Zealand and the United Kingdom ever were to those countries. The US military wrested the Micronesian islands from Japan in World War II in a series of bloody battles that stiffened American resolve never again to permit them to be used against US forces. The United States drafted and subsequently ratified a UN trusteeship agreement (UNSC 1947) giving itself virtual carte blanche in military affairs. In bring­ ing the Trust Territory of the Pacific Islands into existence in July 1947, however, that agreement also foreclosed any US claim to sovereignty over Micronesia, (Sayre 1948, 271), except for the restored US Territory of Guam. This renunciation laid the foundation for the emergence of Micronesian sovereignty and independence. Among the eleven post-World War II trusteeships established by the United Nations, only the Trust Territory of the Pacific Islands was desig­ nated a strategic trusteeship. The trusteeship agreement permitted the United States to station military forces and construct fortifications within the trust territory, as well as to restrict or deny access to it for security rea­ sons. It also allowed the United States to continue testing atomic weap­ ons. The testing had already begun in July 1946 with a series of nuclear explosions at Bikini Atoll, reflecting US unwillingness to delay the achievement of vital national goals pending entry into force of the trustee­ ship. The United States cemented control over the Trust Territory by ..

MICHAL. PROTECTED STATES

ensuring that all strategic trusteeship issues were handled by either the Security Councilor the UN Trusteeship Council. The United States has a veto in the former, and, together with France and the United Kingdom, controlled the latter. Negotiations over a post-trusteeship relationship between the United States and the Trust Territory began in 1969, over twenty years later. The Trust Territory then embraced six districts: Palau, Yap, the Northern Marianas, Truk, Ponape, and the Marshalls. From the start the Northern Marianas had favored a closer relationship with the United States than the other districts. Aspirations in the Northern Marianas for political integra­ tion with the United States culminated in 1975 in the "Covenant to Estab­ lish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America" (US Statutes at Large 90, 263). The covenant took effect, except for the Northern Marianas' incorporation into the United States, on 9 January 1978. The remaining portions of the Trust Territory followed a very different path. Kusaie (now Kosrae) Island, formerly part ofPonape (now Pohnpei) District, became a separate district on I January 1977. Palau and the Marshall Islands entered into separate political status negotiations with the United States after failing in 1978 to ratify a constitution drafted by delegates from all districts of the trust territory. Yap, Truk (now Chuuk), Ponape, and Kusaie districts ratified the constitution, thereby uniting into the present Federated States of Micronesia. Palau and the Marshall Islands gained their own governments after ratifying constitutions in sepa­ rate plebiscites. After over a decade of negotiations, US, FSM, and RMI officials ini­ tialed a draft Compact of Free Association in 1980 (Leibowitz 1989, 646). The Federated States of Micronesia and the United States signed the com­ pact and a host of subsidiary agreements in 1982. The Marshall Islands followed suit in 1983. FSM and Marshall Islands voters approved the com­ pact in separate UN-observed plebiscites in 1983. Somewhat confusingly, the same compact applied to both countries, although the accompanying bilateral subsidiary agreements were individually tailored. Following US congressional approval of the compact, President Reagan proclaimed the trusteeship no longer applied to the Federated States as of 3 November 1986, or to the Marshall Islands as of 21 October 1986. The FSM and RMI governments issued their own declarations of nonapplica- 310 THE CONTEMPORARY PACIFIC. FALL 1993

bility (see NU, 28 Feb 1987, 4, for the FSM proclamation). President Reagan's proclamation also incorporated the Northern Marianas into the United States as of 12:01 AM on 4 November 1986. The joint declarations of nonapplicability by the United States, the Federated States, and the Marshall Islands, in contrast, implemented the Compact of Free Associa­ tion. The declarations of nonapplicability were controversial because the United States did not seek UN Security Council approval. Article 83 of the UN Charter empowered the council to exercise "All functions of the United Nations relating to strategic areas, including the approval of the terms of the trusteeship agreements and of their alteration or amend­ ment ..." The US government instead addressed the issue in the Trustee­ ship Council, an organ of the UN General Assembly. The Trusteeship Council approved the US move in advance by passing Resolution 2183 (LIn) on 28 May 1986. The United States assured the council that it did not consider its action a unilateral termination. According to a US official who served from 1987 to 1990 with the US delegation to Trusteeship Council meetings, where the United States reported on social and eco­ nomic progress in the Trust Territory of the Pacific Islands:

It was our [the US] contention that [the declaration] fell within the preroga­ tives of the administering authority to administer the territory any way it saw fit including the granting of full self-government under the status agreements without actual termination of the Trusteeship Agreement by the Security Council. ... [W]e took the position that since there was no termination pro­ cedure established for the strategic trust, and our obligation was to promote self government etc (art. 76 [of the UN Charter]) we were simply honoring our trust responsibilities by granting full self government and lifting the applica­ tion of the Trusteeship Agreement as appropriate to the governments con­ cerned. (McPhetres 1991)

The compact departs from the form of free association pioneered by the Cook Islands and Niue by reserving foreign affairs to the FSM and RMI governments. It follows those precedents by vesting defense authority in their partner, that is, the United States. Section 3II of Title Three-Secu­ rity and Defense Relations-of the compact obliges the US government to defend the Federated States and the Marshall Islands as if they were part of the United States. Section 3II also empowers the United States to deny MICHAL. PROTECTED STATES 3II access to or the use by third-nation military forces of FSM and RMI facil­ ities and gives the United States the option to establish and use military facilities in both nations (us I987a, 99 Stat I822). These responsibilities and privileges are reconciled with the foreign affairs capacities of both nations by Section I23 of Title One-Govern­ mental Relations: "In recognition of the authority and responsibility of the Government of the United States under Title Three, the Governments of the Marshall Islands and the Federated States of Micronesia shall consult, in the conduct of their foreign affairs, with the Government of the United States" (us I987a, 99 Stat I802). Contrary to Gary Smith's sweeping asser­ tion that "the Micronesian governments are required to 'consult' with the US government in the general conduct of their foreign affairs" (Smith I99I, 97), this obliges the freely associated states to consult on foreign affairs only in the context of security and defense matters. The compact, including sections 3II and I23, can be terminated unilaterally or by mutual agreement under sections 44I, 442, or 443 of Title Four (us I987a, 99 Stat I829)· Those who question FSM and RMI sovereignty tend to focus not on the compact itself, but on the subsidiary mutual security agreements with the United States. The mutual security agreement between the Federated States of Micronesia and the United States ("Agreement Between The Government of the United States and The Government of the Federated States of Micronesia Regarding Friendship, Cooperation and Mutual Security Concluded Pursuant to Sections 32I and 323 of The Compact of Free Association" [us I987a]) provides for mutual consultation in the event of a threat to the political independence of the signatory govern­ ments or to their mutual security in the Pacific. It also contains a direct US security commitment to the Federated States. For its part, the Federated States of Micronesia pledges to consult before permitting any third country access to or use of its facilities by mili­ tary personnel or for military purposes. The Federated States agrees that the US government has the authority and responsibility to foreclose such access or use based upon its sole determination, unless both governments agree on such access or use. The Republic of the Marshall Islands and the United States concluded a similar subsidiary agreement ("Agreement Between the Government of the United States and The Government of the Marshall Islands Regarding Mutual Security Concluded Pursuant to Sec- ,R

312 THE CONTEMPORARY PACIFIC. FALL 1993

tions 321 and 323 of The Compact of Free Association" [us 1987b]). Unlike the compact, these agreements can be terminated only by mutual agree­ ment.

THEORIES DISCOUNTING FSM AND RMI SOVEREIGNTY

The existence of continued formal ties between associated states and their partners has led some scholars to question whether such states can be con­ sidered sovereign. Alan James, for example, asserts that if a supposedly sovereign entity's constitution can be altered unilaterally by an outside state, the former cannot be considered sovereign. He views sovereignty not as a "bundle of attributes," admitting of degrees, but rather as an either-or proposition that turns on the presence or absence of constitu­ tional independence. James denies that associated states, even those responsible for their external affairs, are sovereign entities. He argues that the agreements of association can be terminated unilaterally by either side, "which means that the constitution of the associated state can be altered in a fundamen­ tal way by an outsider." James also claims associated states are not sover­ eign because they were in "colonial subordination" prior to the agreement of association (James 1986, 105). Stewart Firth cites James in arguing that the mutual security subsidiary agreements between the United States and the Federated States of Micronesia and the Republic of the Marshall Islands "create a right of per­ manent strategic denial in the area by the United States armed forces. ... The effect of the subsidiary agreements is that the Marshalls and the Federated States may withdraw from the benefits but not from the costs and obligations created by their political settlement with the United States." According to Firth, "The Marshall Islands cannot terminate the application of strategic denial by a constitutional amendment. In this sense I assert the existence of a constitutional link between the United States and Micronesia"-presumably both the Federated States and the Marshall Islands (Firth 1989, 79). Firth further argues that the joint declarations of nonapplicability of the trusteeship improperly circumvented the required Security Council ap­ proval (1989, 80-81). Ironically, the Security Council, originally viewed as the only sure means of protecting US interests in the trusteeship, became an obstacle when the United States sought to help the Micronesian states MICHAL. PROTECTED STATES obtain international recognition. The United States refrained from pro­ posing a Security Council resolution terminating the trusteeship because the Soviet Union had indicated it would veto such an effort. This would have had the disastrous effect, for both states, of seeming to reject their claim to international standing. The United States justified its failure to request Security Council ap­ proval for the declarations of nonapplicability by asserting that Article 83 does not specify how the strategic trusteeship would be terminated. The US reasoning was taken with a grain of salt by such West European allies as France and the United Kingdom, which declined to recognize either nation in the absence of Security Council action. Firth claimed that the standoff over the role of the Security Council left substantial doubt as to the sovereignty of the two countries (1989,80-83). Yash Ghai, a Pacific constitutional scholar, raised another objection. He argued: "The constitutions [of the former trust territory districts] did not require enactment by the US; on the other hand the [constitutional] conventions were themselves the creation of the Congress of Micronesia, which owed its existence to an Order of the United States. Thus the con­ stitutions do not pass the purist's test of autochthony, even though the constitutions do not come into force unless approved in a referendum" (Ghai 1985, 32).

ARGUMENTS SUPPORTING FSM AND RMI SOVEREIGNTY

None of these reasons for refusing to concede the sovereignty of the Federated States of Micronesia and the Republic of the Marshall Islands is valid. It is therefore not surprising that the two countries won interna­ tional recognition prior to the Security Council termination. James's insis­ tence upon constitutional independence as the touchstone of sovereignty is not unreasonable; what is unreasonable is his presumption that the FSM and RMI constitutions are not independent of the United States. Neither was enacted by the United States Congress nor did the US government draft, adopt, or amend them. Termination of the compact or any of its subsidiary agreements would not alter either country's constitution, although it could have a major effect on their finances. There is simply no organic link between the constitutions of the two polities and the United States. Nor can the trusteeship under which the freely associated states were administered prior to compact implementation be equated to the THE CONTEMPORARY PACIFIC· FALL 1993

"colonial subordination" that encourages James to reject the sovereignty of associated states. Firth's effort to posit a constitutional link based on the mutual security agreements also fails to stand up under scrutiny. He asserts that the Federated States and the Marshalls are constitutionally linked to the United States because they cannot terminate the mutual security subsidi­ ary agreements by unilateral constitutional amendments. If that were the case, however, then all nations that have signed treaties with one another would be constitutionally linked. As James himself points out, treaties are properly subject to termination only by mutual agreement (James 1986, 104). The inability to terminate treaties unilaterally thereby would deprive all parties to such agreements of sovereignty-a reductio ad absurdum demonstrating the argument's fallacy. To the contrary, the Federated States of Micronesia and the Republic of the Marshall Islands can unilaterally terminate or breach treaties they have signed, including the Compact of Free Association. The US Congress certainly foresaw this possibility. It tried to discourage such actions with respect to the compact by insisting upon the inclusion of clauses permit­ ting the United States, in the event of FSM or RMI noncompliance, to sus­ pend compact-mandated payments (us 1987a, 99 Stat 1793). Both nations have the underlying capacity to act unilaterally-even against their own best interests. The most telling argument against the hypothesis that neither nation is sovereign, however, has been the willingness of other nations to enter into normal diplomatic relations with and establish embassies in both coun­ tries. Both nations successfully expanded their international personalities in both multilateral and bilateral spheres prior to the trusteeship termina­ tion. Their diplomatic relations are expanding inexorably in the post­ trusteeship period. The theory that the mutual security agreements pre­ clude FSM and RMI sovereignty must be discarded because it cannot explain these developments. The debate over the role of the UN Security Council in terminating the trusteeship became irrelevant with the December 1990 termination. In its willingness to make the trusteeship nonapplicable prior to termination, the United States tapped a deep well of sentiment in favor of self-determi­ nation that turned the declarations of nonapplicability into a diplomatic success rather than a failure. The joint declarations-incorrectly labeled at times as the "unilateral US termination" because they were neither uni- .. t'J.

MICHAL. PROTECTED STATES lateral nor a termination-advanced the cause of self-determination in the course of implementing a political status currently extant nowhere else on earth. Yash Ghai slights the FSM and RMI constitutions because they were drafted by conventions convened by an institution-the Congress of Micronesia-established by the trusteeship administering power. This objection, however, could be directed with equal force at the constitutions of other Pacific states. For example, the Constituent Assembly of Papua New Guinea that enacted the PNG constitution prior to independence consisted of the members of the House of Assembly (Ghai 1985, 31) estab­ lished by the Australian colonial administration. FSM and RMI sover­ eignty is less tainted by constitutions drafted under the auspices of UN trusteeship than the sovereignty of other nations is by constitutions drafted under the auspices of colonialism.

MICRONESIAN SOVEREIGNTY

Since the principal objections to FSM and RMI sovereignty do not hold up, whence does Micronesian sovereignty spring? Did the United Nations -and prior to it, the League of Nations-exercise sovereignty, given that neither the United States, nor its administrative predecessor, Japan, ever asserted sovereignty over the Micronesian islands (Sayre 1948, 270-271; Hills 1984, 590)? Or has sovereignty always resided in the Micronesian people? Referring to the pre-World War II League of Nations mandate system, which included Japanese-mandated Micronesia, Sayre observed in 1948 that "little now is heard of the theory that sovereignty over the mandated territories resided in the League of Nations." Sayre argued that the League of Nations disappeared without transferring mandate responsibilities or title to the mandated territories to the United Nations (Sayre 1948, 271). The US government claimed in 1947 that the League of Nations' succes­ sor, the United Nations, could "properly represent that aspect [sover­ eignty] of the life of these islands" (McKibben 1990, 269, n63). This hypothesis is equally questionable. The United Nations did not assert sov­ ereignty over the Micronesian islands in the trusteeship agreement with the United States. Instead, it enjoined the United States "to provide the status of citizenship of the trust territory for the inhabitants of the trust territory" (UNSC 1947, Article II). This reflected UN intentions neither to 316 THE CONTEMPORARY PACIFIC· FALL 1993 assert sovereignty-as it could have, for example, by creating a common UN citizenship for the inhabitants of all eleven post-World War II trustee­ ships-nor to permit administering powers to integrate their trust territo­ ries by conferring metropolitan citizenship. The trusteeships bestowed international approval only for the administering powers to act as if they were sovereign. Micronesian sovereignty therefore can be considered to have lain "dormant" (McKibben 1990, 268, n59) during the trusteeship. The Federated States of Micronesia and the Republic of the Marshall Islands emerged from this dormant state when they gained the capacity to enter into binding international commitments prior to the joint declara­ tions of nonapplicability of the trusteeship-specifically, when their con­ stitutions entered into effect: 10 May 1979 in the Federated States (Burdick 1988, 257), and I May 1979 in the Marshalls (RMI 1988, 48). Burdick argues:

Indeed, it is important that the [FSM] Constitution was designed to come into effect before the termination of the Trusteeship to ensure that the establish­ ment of a new political relationship with a foreign power would be done under the authority of, and in conformity with, the Constitution. Thus, the Constitu­ tion's chronological precedence helps ensure its supremacy over international agreements. The referendum on the Constitution was therefore an act of self-determina­ tion of the most fundamental significance. For the first time in the modern era, Micronesians asserted the existence of their sovereignty and identified its locus. (Burdick 1988,259)

To be sure, some Micronesians had previously denied that their sover­ eignty depended upon any external colonial or administering powers. For example, a group called Micronesian Independence Advocates-Hawaii declared "Before any whiteman set foot on our islands, we were indepen­ dent and sovereign.... We declare that the sovereignty of Micronesia has always resided in the people of Micronesia and we want our American masters to acknowledge this non-negotiable and inalienable right" (MIAH 1971, I). Burdick nonetheless correctly asserts that only the entry into effect of the FSM and RMI constitutions created a locus for that sovereignty. The constitutions thereby invested the Federated States and the Marshall Islands with sufficient international personality to enter into binding agreements such as the compact. This analysis is congruent with that of MICHAL. PROTECTED STATES

James. Sovereignty presupposes, according to James, a constitution, or some document serving as one, independent of organic links to another nation (James 1986,105). This is the case with both of the constitutions of the freely associated states. The entry into force of the FSM and RMI con­ stitutions therefore was the point at which the two nations emerged as sovereign entities, not the entry into force years later of the compact. The compact undoubtedly is the single most important international agree­ ment those nations have ratified so far but, as former FSM President Haglelgam has pointed out:

The Compact ofFree Association is not organic to Micronesian sovereignty. It is not an instrument which transfers sovereignty to the Micronesian people. It is a treaty, entered into by two co-equal sovereigns, and made effective, not unilaterally, but by the constitutional processes of each. (Haglelgam 1990, 5-6, italics in original)

It does not detract from Haglelgam's point to note that the compact and its subsidiary agreements were not submitted in the form of a treaty to the US Senate for its advice and consent, as prescribed by the US Constitu­ tion. Both houses of Congress instead approved them as a "Congressional­ Executive Agreement." The UN trusteeship agreement was approved in 1947 in the same manner (Hills 1984, 588). The US government considers a treaty and executive agreement to impose equivalent international obliga­ tions (usc 1984,108). Haglelgam also could have noted that the compact was the product of a series of arduous and intense negotiations. The Micronesian side strug­ gled successfully to obtain US agreement, in Principle Three of the Hilo Principles-adopted in Hawai'i on 9 April I978-that the proposed consti­ tution would be the supreme law of the new nation, rather than the com­ pact itself (Leibowitz 1989, 657-659). Similarly, the Micronesians gained US agreement to vest the foreign affairs authority in the nascent nation, rather than in the United States (Leibowitz 1989, 673-676). These strug­ gles lay to rest the canard that free association is a unilaterally imposed, US government-dictated status. The hypothesis that the Federated States and the Marshall Islands gained their sovereignty when their constitutions entered into force faces a more substantial challenge. The US Secretary of the Interior, prior to devolving power to the new constitutional governments, reserved the right to suspend laws, by implication including constitutional amendments, 318 THE CONTEMPORARY PACIFIC. FALL 1993 enacted by their legislatures (USDOI 1979, 28rr7). At first, this move seems to have created, albeit indirectly, the "constitutional link" with the United States asserted by Firth. The United States, however, did not reserve any authority to alter, sus­ pend, repeal, or otherwise derogate the two constitutions. Moreover, both nations have always been able to amend their constitutions by means other than enacting laws (FSM 1982, c-16; RMI 1988, 43). The effect of the reservation on the "constitutional independence" considered by James to be at the heart of sovereignty therefore was only marginal. The reserva­ tion aimed not to cripple the fledgling governments, but rather to leave no doubt that the United States retained the authority to continue fulfilling its trusteeship obligations.

MICRONESIAN INDEPENDENCE

In contrast to the eventual US acknowledgment of Micronesian sover­ eignty, the United States consistently has viewed Micronesian indepen­ dence as a potential threat to its security interests. The initial US draft of the 1947 trusteeship agreement focused only on "self-government" as a goal for the development of the Trust Territory. Pressed by the Soviet dele­ gation to amend that phrase to "self-government or independence" the US representative agreed, but declared "the United States feels that it must record its opposition not to the principle of independence, to which no people could be more consecrated than the people of the United States, but to the thought that it could possibly be achieved within any foresee­ able future in this case" (Sayre 1948, 280-281; Clark 1980, 6-7). This skepticism reappeared many years later in the US insistence that the Federated States and the Marshall Islands avoid any mention of, or even renounce, independence in documents defining their status in rela­ tion to the United States. For example, according to the second sentence of the first Hilo Principle, "During the life of the agreement [of free associ­ ation] the political status of the peoples of Micronesia shall remain that of free association as distinguished from independence" (Manhard 1979,73). The preamble to the compact itself (us 1987a, 99 Stat 1800) omits any mention of independence (referring only to "institutions of self-govern­ ment"), as do the preambles to the FSM and RMI constitutions. The US government, in fact, agreed to negotiate an agreement of free association only after the Micronesians first rejected an offer to become part of the MICHAL. PROTECTED STATES

United States. Free association must have seemed to offer the only alterna­ tive short of independence likely to gain international approval, despite Resolution 2625 (XXV). US officials have referred occasionally but only half-heartedly to the Micronesian right to seek political independence (usc 1984,48). President Reagan did not mention independence in his proclamation implementing the compact or in subsequent congratulatory anniversary messages to the Federated States of Micronesia. President Bush followed suit. The Depart­ ment ofState adheres to this policy, although not without internal debate. In a rare deviation from this otherwise consistent US approach, the sub­ sidiary mutual security agreements called for consultations in the event "the political independence of either of [the signatory governments] or their mutual security is threatened in the Pacific." US Permanent Repre­ sentative to the United Nations Pickering came close to employing the "1­ word" in a statement delivered before the Security Council just prior to its termination of the trusteeship. Ambassador Pickering declared, "I believe we should move as well to recognize the clear wishes of 140,000 inhabit­ ants of the Marshalls and the Federated States of Micronesia, who them­ selves wish to have their status reviewed by the Council and seen to be effectively that of States in free association with the United States, with the capacity to act independently" (UNSC 1990, 7). The latter phrase could presage a fundamental shift in US terminology. The United States' hesitation to employ the term independence in rela­ tion to the freely associated states exasperates the Micronesians, who have laid claim to independence since the beginning of free association. FSM President Nakayama, for example, proclaimed the compact implemented on behalf ofthe Federated States on 3 November 1986 with the words "we, the free and independent people of the Federated States of Micronesia ... now enter into free and voluntary association with the United States of America in accordance with the Compact of Free Association" (NU, 28 Feb 1987, 4). Given its cautious approach toward the status of the freely associated states, the United States originally expected neither entity to qualify for UN membership. The executive branch responded to a 1984 congressional inquiry by noting, "In the view of the United States, the Freely Associated States, while having sovereignty and full self-government, will not possess the attributes of independence called for in the eligibility criteria of the United Nations Charter" (usc 1984, 109). An executive branch official 320 THE CONTEMPORARY PACIFIC. FALL 1993

predicted the plenary US authority for defense and security matters would deprive the two nations of the "attributes of statehood sufficient for admission to the U.N. under the criteria established in Article 4(1) of the Charter" (usc 1984, 50). Notwithstanding this rather pessimistic assessment, the US government had already committed itself in Section 122 of the compact to support freely associated state membership in regional and international bodies­ the latter presumably including the United Nations-but only "as may be mutually agreed." The United States indeed responded positively when the Federated States of Micronesia decided to seek UN membership following the Security Council trusteeship termination (Haglelgam 1991, 13). It could hardly have reacted otherwise, given its professed goal of promoting "international recognition of the Freely Associated States by all countries of the world, assisting them in overcoming barriers to their recognition erected by some countries in the U.N. context" (USDS 1990, 8). The United States therefore supported the FSM and RMI applications to become UN members that culminated in their September 1991 admission. The United States, in contrast, has steadfastly resisted the FSM desire to sign the South Pacific Nuclear Free Zone (SPNFZ) Treaty. The Federated States indicated its support for the SPNFZ Treaty in 1985 (NU, 15 Aug 1985), the year members of the South Pacific Forum opened it for signature. The SPNFZ boundaries deliberately excluded Micronesia so as to maximize the chances of US ratification of the SPNFZ Treaty protocols. The treaty's Arti­ cle XII, however, set out the procedures by which the SPNFZ can be expanded upon accession by Forum members north of the equator, clearly anticipating the inclusion of the Federated States and the Marshall Islands. President Haglelgam indicated publicly that the Federated States of Micronesia was considering signing the SPNFZ Treaty in November 1989 (Mangnall 1989). Such a move, however, would require prior consultation with the United States under both the compact and the mutual security subsidiary agreement. The United States itself has declined to ratify the protocols attached to the SPNFZ Treaty. As long as the United States main­ tains this attitude, it is unlikely to agree to FSM or RMI accession to the SPNFZ. Conversely, US government concurrence in accession by the freely associated states would signal a possible shift in US attitudes toward sign­ ing the protocols. The Federated States is unlikely to initiate the consultations required MICHAL. PROTECTED STATES 321 under the compact to accede to the SPNFZ Treaty without prearranged agreement from the United States because an American rebuff-which could not be kept quiet-would impair its claim to political independence. The Federated States is even less likely to sign the SPNFZ unilaterally, given the crisis in relations with the United States such a move would provoke. The Federated States would like to use SPNFZ accession to shake off doubts about its independence once and for all. The compact and its subsidiary agreements, however, as voluntarily agreed to, subject the Micronesian signatories to potentially heavy economic penalties for engaging in unilateral foreign policy moves affecting US defense responsi­ bilities.

FSM AND RMI INTERNATIONAL RELATIONS

The Federated States of Micronesia and the Republic of the Marshall Islands developed strong bilateral ties with other nations following the joint declarations in 1986. Australia and New Zealand were among the first to deal with them, albeit cautiously. Australia sent the first foreign diplomat to present his credentials in Kolonia, but termed its representa­ tive, the consul-general in Honolulu, a "Minister," rather than an ambas­ sador (NU, 15 July 1987, I). New Zealand appointed a representative (NU, June-July 1988, I). To a degree, both nations followed the US lead. The compact initially provided that the United States and the two states would exchange resi­ dent "representatives" rather than ambassadors. The United States, the Federated States, and the Marshalls remedied this confusing terminology in 1989 by amending the compact to change the titles of their diplomatic emissaries to ambassador. The first and last US representatives in Kolonia and Majuro, respectively, were Michael G. Wygant and Samuel B. Thomsen.2 Australia and New Zealand eventually accredited ambassadors to the Federated States and the Marshalls, and Australia set up a resident embassy, all prior to the Security Council trusteeship termination. The Australian foreign minister visited both nations in July 1989 and FSM President Haglelgam paid his first state visit to Australia. The determina­ tion of the Australian and New Zealand governments to establish cordial relations with the two new Pacific nations impelled both to act sooner rather than later. *M5

322 THE CONTEMPORARY PACIFIC· FALL 1993

The West Europeans, less keenly interested in Pacific Island affairs and, in some instances, opposed to the US failure to seek Security Council approval for its declaration of nonapplicability, deferred opening diplo­ matic relations but retained a watching brief. For example, the Swiss ambassador to South Korea visited the Federated States of Micronesia in August 1987, the British high commissioner to Kiribati met President Haglelgam in September 1987, the Netherlands ambassador to the Philip­ pines followed suit in April 1989, and the French "deputy Consul General" in Honolulu visited in August 1989 (NU, var). Diplomatic officials of twelve nations and the United Nations attended the dedication, on 3 November 1989, of the new FSM national capital at Palikir, Pohnpei Island (King 1989, 2). The Federated States and the Marshalls also intensified their participa­ tion in multilateral organizations after the compact was implemented. Both were admitted to the South Pacific Forum as full members in 1987 (NU, 15 June 1987, 2); to the International Civil Aviation Organization in 1988 (ICAO 1989, 20); and to the Asian Development Bank in April 1990 (ADB 1990, 12). The Federated States signed the South Pacific Allied Geo­ science Commission (SOPAC) constitution in October 1990 (NU, 30 Nov 1990, 6), joining the Marshall Islands as a founding state. All these steps occurred prior to the December 1990 Security Council termination. The Federated States of Micronesia ratified the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, as well as two UN drug conventions, again prior to the Security Council action. United Nations bureaucrats were reluctant to accept its ratifica­ tions for deposit, however, absent a clear resolution of its status by the Security Council. The United Nations is likely to accept these instruments now that both nations have become members.

PROTECTED STATES

The foregoing clearly demonstrates that the Federated States of Microne­ sia and the Republic of the Marshall Islands were treated as sovereign states and assumed a number of the obligations associated with sover­ eignty prior to the Security Council trusteeship termination. The principal remaining issue is to what extent they can be termed independent. Their publicly proclaimed status as freely associated states does not shed much light on the question. The international personalities of the Cook Islands MICHAL. PROTECTED STATES and Niue, also nominally associated states, are not nearly as substantial as those of the Micronesian nations. To place all four entities in the same cat­ egory confuses, rather than clarifies, their status. James's description of the nineteenth-century status of "protected states"-not to be confused with the more subservient status of "protec­ torates"-better describes the relationship of the Federated States and the Marshalls to the United States than the term freely associated states. According to James,

a protected state ... not only is constitutionally independent before it assumes that status-as is indicated by the fact that it becomes a protected state by way of an international treaty; it also persists in that condition thereaf­ ter, as the independence of its constitution is unaffected by the treaty of protec­ tion. It has not become part of a wider constitutional setup but has just entered into a rather special treaty relationship with another state. From which it may be concluded that it remains a sovereign state-and a fully sovereign one at that, there being no half measures in this sphere. It has voluntarily chosen to restrict the exercise of its sovereign rights in a certain area, allowing another to act on its behalf. But in respect of areas not covered by the treaty of protection it retains its complete freedom of action and, if appropriate, may make treaties on such matters. It may also be open to a protected state to exchange diplo­ mats with other sovereign states, a practice which "historically ... has been a common occurrence." (James 1986,100-101)

James cites as examples ofprior protected states Tunisia and Morocco vis­ a-vis France; Korea vis-a-vis Japan; and Zanzibar, Bahrain, the Trucial States, and Tonga vis-a-vis the United Kingdom. The Federated States and the Marshall Islands deserve to be considered protected states because they voluntarily accepted certain restrictions on their sovereign powers by entering into the Compact of Free Association with the United States; they retained constitutionally independent govern­ ments after compact implementation; they have exercised their latent capacity to exchange diplomats with other nations; and they have been recognized by other nations and international organizations. Admission to the United Nations confirms the international consensus as to their sov­ ereignty. Protected states are independent as well as sovereign by virtue of the way James defines sovereignty. According to James, sovereignty entails constitutional independence. By qualifying the noun independence with THE CONTEMPORARY PACIFIC. FALL 1993 the adjective constitutional, James converts an otherwise amorphous con­ cept into a manageable criterion. His insistence that sovereignty is not a bundle of attributes amounts to a rejection of all other criteria. This rejec­ tion clears the way for James to conclude that it is possible to determine unequivocally whether an entity is sovereign or not. Ironically, however, James's refusal to acknowledge degrees of sovereignty supports the pro­ posal that there are degrees ofindependence. This follows because the achievement of constitutional independence, and consequent admission to the family of sovereign nations, does not free a state of all limitations. No state-not even the most powerful-can be considered totally independent. All sovereign nations are subject to a wide array of restrictions on their ability to act, including both those assumed voluntarily (such as treaties, alliances, and international agreements) and those imposed by external realities (such as aid dependency, balance-of­ trade deficits, and hostile neighbors). Conversely, no sovereign state, however constrained, entirely lacks independence. The moiety ofindepen­ dence enjoyed by a sovereign state renders it competent both to enter into diplomatic relations with other states and to sign international agree­ ments. In the case of the Federated States of Micronesia and the Republic of the Marshall Islands, for example, both became competent to sign the Compact of Free Association with the United States once their constitu­ tions entered into force. Perceptions about whether a polity is constitutionally independent fre­ quently determine whether it will be afforded the opportunity to establish diplomatic ties or to sign international agreements. Even James's presum­ ably clear test can falter when confronted by such borderline entities as the Cook Islands and Niue because international actors may hold varying per­ ceptions of their status. The Cook Islands and Niue have been treated as sovereign in a number ofcontexts, but could obtain greater recognition by renouncing New Zealand citizenship or rescinding their delegation of authority over external affairs to the government ofNew Zealand. Although sovereign since 1979, both Micronesian states extended what Ambassador Pickering termed their "capacity to act independently" by assuming the status of protected states. First, the declarations of nonappli­ cability ended the chilling effect of the trusteeship upon FSM and RMI diplomatic relations. According to the theory just elaborated, the fledgling FSM and RMI governments could have established relations with other states once their constitutions entered into force in 1979. Such ties never "

MICHAL. PROTECTED STATES

developed because the United States would have opposed them as encroaching on US responsibilities. Second, the joint declarations ended the potential for the United States to suspend FSM and RMI legislation. As noted above, before devolving authority to the two governments established under the new constitutions, the US Secretary of the Interior decreed that the laws of each nation would not take effect if suspended by the trust territory high commissioner. The declarations vacated this order. Finally, the joint declarations implementing the compact inaugurated separate citizenships for residents of the respective portions of the trust territory. There are those who attempt to minimize the importance of this development. McKibben, for example, argues that because the compact bestowed the "essential benefits" of US citizenship on FSM and RMI citi­ zens, the only difference between the Federated States, the Marshall Islands, and the US Commonwealth of the Northern Mariana Islands is the degree of US control over foreign affairs (McKibben 1990, 275). This argument does not hold water. The compact permits FSM and RMI citi­ zens to live and work in the United States, but thereby waives only a hand­ ful of the thirty-odd grounds for exclusion under US immigration law. The US government retains, and from time to time has exercised, its authority to prevent FSM or RMI citizens from entering or remaining in the United States, thus drawing a clear line as to the benefits accorded citi­ zens of those jurisdictions. Citizens of both nations are entitled to an array of US government-provided benefits under the compact. Eligibility for such benefits, however, cannot be equated to US citizenship except under the most mercenary interpretation. The establishment of separate citizen­ ships undoubtedly helped convince foreign states and multilateral organi­ zations to accept the two jurisdictions as sovereign.

CONCLUSIONS

Those who argue that the Federated States of Micronesia and the Repub­ lic of the Marshall Islands will never be sovereign until the mutual security subsidiary agreements are terminated must account for the continually expanding recognition accorded to the two nations since the 1986 declara­ tions. Those who claim the two nations became sovereign only upon the Security Council trusteeship termination in 1990 must explain the success­ ful development of their international personalities prior to termination. THE CONTEMPORARY PACIFIC· FALL 1993

And those who date FSM and RMI sovereignty to the implementation of the compact in 1986 must justify how the compact can have any legitimacy if entered into by nonsovereign entities. The hypothesis that the two nations became sovereign upon the entry into effect of their constitutions, in contrast, provides a rationale for both the legitimacy of the compact and the rapid development of their respective international relations fol­ lowing compact implementation. Palau (also termed the Republic of Belau)-the sole remaining portion of the Trust Territory-is now in a position analogous to that of the Fed­ erated States and the Marshalls prior to the declarations of nonapplicabil­ ity. It gained a locus of sovereignty by adopting a constitution, but the United States continues to assert the right to suspend laws enacted by the Palauan legislature (USDOI 1979, 28II7, superseded by USDOI 1990, 43223). The US government nonetheless is bound by the trusteeship agreement to "promote the development of the inhabitants of the trust territory toward self-government or independence" (UNSC 1947, Article 6). The restrictions on Palau eventually will be lifted, as they were for the Federated States and the Marshalls, whether Palau becomes a protected state or not. As for the Federated States and the Marshall Islands, the US govern­ ment may accede to their desire to be termed independent, if they acknowledge that such terminology does not affect their obligations under the compact. The status of each as protected states could prove as evanes­ cent as the trusteeship. The annual grants provided to the two nations by the United States under the compact will come to an end in 2001. The compact parties are to begin negotiating whether to extend this assistance beyond its original fifteen-year term on I October 1999. 3 Islander expecta­ tions for substantial continued aid, however, may be disappointed should no new strategic threats arise in the post-Soviet Pacific. The parties could eventually conclude that the mutual obligations established by the com­ pact are no longer in their respective national interests. If so, these two protected states ultimately may shed their chrysalis to reappear before the international community in less exotic guise.

THIS ARTICLE was originally prepared for a course at the University of Hawai'i while the author was an MA candidate in Pacific Islands Studies, and was subse­ quently presented at the December 1991 Pacific Islands Political Studies Associa- · "

MICHAL. PROTECTED STATES tion conference in Melbourne, Australia. The author (a US Foreign Service offi­ cer) served at the US Embassy in Kolonia, Pohnpei, Federated States ofMicrone­ sia, from 1988 to 1990. The views expressed here are solely those of the author and should not be taken to represent the position ofthe United States Department ofState or the United States Government.

Notes

I A more recent statement by the government of New Zealand, obtained by the author in early 1992 from the Ministry of External Relations and Trade, fur­ ther clarifies New Zealand's views on the status of the Cook Islands:

Statement Presented to UNESCO by the New Zealand Government, October 1989

The Cook Islands is neither a colony nor a dependent territory. Nor, however, is it a sovereign independent state as that concept is traditionally understood in international law. It falls into a special category of which the Cooks and Niue are perhaps the only members. It is an associated state with full control over its own destiny in matters relat­ ing to both domestic and external affairs. By virtue of its constitution the Cook Islands has full legislative competence over all its affairs. Consequently the constitutional relationship existing between New Zealand and the Cook Islands is best understood by making an analogy with a partnership. The common elements of this partnership are the shared legal personality at international law, the same Head of State and citizenship. As in a partnership each partner has cer­ tain responsibilities toward the other partner to ensure the continued existence of the partnership. But each partner can if it wishes withdraw from the partnership at any time. The constitutional relationship provides for the exercise by New Zealand of certain responsibilities for the defence and external relations of the Cook Islands. However, this does not confer upon the New Zealand Government any rights of control. All legis­ lative and executive powers, whether in these fields or any other, are vested exclusively in the Government of the Cook Islands and the exercise by the New Zealand Govern­ ment of any responsibilities in foreign affairs or defence must be preceded by full con­ sultation with the Cook Islands. In carrying out these responsibilities the New Zealand Government is in effect acting on the delegated authority of the Cook Islands Govern­ ment. ... It is important to stress not only that the Cook Islands has full constitutional capac­ ity to conduct its own external relations and to enter directly into international arrange­ ments and agreements but that in fact they do directly conduct certain aspects of their external relations.... Capacity at international law has always depended upon "recognition"-that is, THE CONTEMPORARY PACIFIC· FALL 1993

upon willingness of one state to take notice of and deal with another. It is clear that in recent practice many states, particularly those in its own region, have been willing to deal directly with the Cook Islands and accordingly to accept that the Government of the Cook Islands can exercise some of the attributes of sovereignty and engage interna­ tional responsibility [sic] in its own right.

2 For the record, the Department of State determined that Wygant and Thomsen were "ofequivalent rank to Ambassadors" while bearing the title of Representative, per US State Department telegram number 343368 (1989). 3 The compact mandates that negotiations to extend provisions of the compact expiring on its fifteenth anniversary, that is, provisions relating to economic assistance (99 Stat, 1813-1814), begin on the thirteenth anniversary (99 Stat, 1818). The "Agreement Between the Government of the United States and the Government of the Federated States of Micronesia Regarding Implementation of the Compact of Free Association" (US 1987a), however, established that the anniversary of the effective date of the compact would fall each year on I October. The negotiations on economic assistance therefore are to begin on I October 1999.

References

Aikman, C. C. 1982 Constitutional Developments in the Cook Islands. In Pacific Constitu­ tions. Proceedings of the Canberra Law Workshop VI, edited by Peter Sack, 87-96. Canberra: Australian National University Printing Ser­ VICes. ADB, Asian Development Bank 1990 ADB Quarterly Review, no. 2, May. Burdick, Alan B. 1988 The Constitution of the Federated States of Micronesia. In Law, Politics and Government in the Pacific Island States, edited by Yash H. Ghai, 253-284. Suva: University ofthe South Pacific. Clark, Roger S. 1980 Self-Determination and Free Association-Should the United Nations Terminate the Pacific Islands Trust? Harvard International Law Journal 21:1-86. Crawford, James 1979 The Creation ofStates in International Law. Oxford: Clarendon Press. FSM, Federated States of Micronesia 1982 Constitution of the Federated States of Micronesia. In Code of the Federated States ofMicronesia, voIr. Seattle, WA: Book Publishing. .. .,

MICHAL. PROTECTED STATES

Firth, Stewart 1989 Sovereignty and Independence in the Contemporary Pacific. The Con­ temporary Pacific 1:75-96. FBIS, Foreign Broadcast Information Service 1991 Diplomatic Relations with Micronesia, Marshall Islands. 241605Z Apr 91. Monitoring Hamburg DPA [Deutsche Press Agency] at 1529 GMT 24 April. Ghai, Yash H. 1985 Constitutional Issues in the Transition to Independence. In Foreign Forces in Pacific Politics, edited by Ahmed Ali and Ron Crocombe, 24-65. [Suva]: Institute of Pacific Studies, University of the South Pacific. Haglelgam, John 1990 Remarks by [FSM] President Haglelgam at the Willamette University [Oregon] Conference, In the Pacific Interest, 23 February. (Held by author.) 1991 Problems of National Unity and Economic Development in the Feder­ ated States of Micronesia. Agaiia: Micronesian Area Research Center, University of Guam. Hills, Howard Loomis 1984 Compact of Free Association for Micronesia: Constitutional and Inter­ national Law Issues. International Lawyer 18(3):583-608. ICAO, International Civil Aviation Organization 1989 Reports and Minutes. Administrative Commission. Assembly. 27th Ses­ sion. Montreal, 19 September-6 October 1989. Doc 9548, A27-AD. James, Alan 1986 Sovereign Statehood: The Basis ofInternational Society. Key Concepts in International Relations 2, Paul Wilkinson, series editor. London: Allen & Unwin. Jonassen, Jon Michael 1983 The Cook Islands: The Development ofan External Affairs Department in an Emerging Microstate. MA thesis. University of Hawai'i, Honolulu. King, Joan. 1989 JK Report on Micronesia, November. Monthly, Kolonia, Pohnpei. Leibowitz, Arnold H. 1989 Defining Status: A Comprehensive Analysis of United States Territorial Relations. Dordrecht, Netherlands: Nijhoff. MacDonald, Barrie 1983 Current Developments in the Pacific. Self-determination and Self-gov­ ernment. Journal ofPacific History 17:51-71. 33° THE CONTEMPORARY PACIFIC· FALL 1993

McKibben, Lizabeth A. 1990 The Political Relationship Between the United States and Pacific Islands Entities. Harvard International Law Review 31(1):257-293. McPhetres, Samuel 1991 Personal communication to author. 21 May. Mangnall, Karen 1989 Small is Beautiful. Pacific Islands Monthly (Nov):2I. Manhard, Ambassador Phillip W. 1979 The United States and Micronesia in Free Association: A Chance to Do Better? National Security Affairs Monograph 79-4. Washington, DC: National Defense University Research Directorate. MIAH, Micronesian Independence Advocates-Hawaii 1971 Platform and Program of the Micronesian Independence Advocates. I May. University of Hawai'i Hamilton Library, Pacific Collection, Hono­ lulu. NU, The National Union var. FSM Public Information Office. Irregular. RMI, Republic ofthe Marshall Islands 1988 Constitution of the Marshall Islands. In Marshall Islands Revised Code, vol 1. Sayre, Francis B. 1948 Legal Problems Arising from the United Nations Trusteeship System. The American Journal ofInternational Law 42(1):263-298. Smith, Gary 1991 Micronesia: Decolonisation and US Military Interests in the Trust Terri­ tories ofthe Pacific Islands. Canberra: Peace Research Centre, Research School ofPacific Studies, Australian National University. UNGA, United Nations General Assembly. Fourth Committee 1989 Summary Record ofthe 15th Meeting, held 23 October 1989. AI C·4 1441 SR.15. 6 November. UNSC, United Nations Security Council 1947 Trusteeship Agreement for the Former Japanese Mandated Islands Approved at the One Hundred and Twenty-Fourth Meeting ofthe Secu­ rity Council. us Statutes at Large 61, 3301. 1990 Provisional Verbatim Record of the Two Thousand Nine Hundred and Seventy-Second Meeting. s/pv.2972. 22 December. us, United States 1987a Compilation of Agreements between the Government of the United States and the Freely Associated State ofthe Federated States ofMicrone- MICHAL. PROTECTED STATES 33 1

sia. Washington, DC: The President's Personal Representative for Micronesian Status Negotiations. 1987b Compilation of Agreements between the Government of the United States and the Freely Associated State of the Republic of the Marshall Islands. Washington, DC: The President's Personal Representative for Micronesian Status Negotiations. USC, United States Congress. House Committee on Foreign Affairs 1984 Micronesia Compact of Free Association: A Review of H.]. Res. 620. 98th Congress, Washington, DC. USDOI, United States Department ofthe Interior 1979 Secretarial Order No. 3039, dated 25 April 1979. Federal Register 14 MaY:28116-28118. 1990 Secretarial Order No. 3142, dated 16 October 1990. Federal Register 26 October:43221-43224· USDS, United States Department of State 1990 Report to Congress Concerning Oceania. Public Law 101-426 (Foreign Relations Authorization Act, Fiscal Years 199°-91), Section 1008, p 75 [August]. 1991 Treaties in Force: A List of Treaties and Other International Agreements ofthe United States in Force on January 1,1991. Washington, DC:USGPO. Zdanovich, Michael 1991 From Dependency to Sovereignty: Two Micronesian States Join the Global Community of Nations. Asia-Pacific Current Affairs Notes. Honolulu: East-West Center, International Relations Program.

Abstract

International recognition of the Federated States of Micronesia and the Republic of the Marshall Islands as sovereign entities accelerated following the UN Secu­ rity Council termination of the US-administered UN trusteeship over them in December 1990. However, both states had already established substantial inter­ national personalities prior to the Security Council action. The governments of the United States and both nations declared the trusteeship "non-applicable" to both in 1986, concurrently with the entry into effect of the Compact of Free Asso­ ciation. The two nations subsequently established diplomatic ties with such diverse countries as Israel, the People's Republic of China, Australia, and numer­ ous South Pacific neighbors, and joined a variety of international organizations, all prior to the termination. The declarations of nonapplicability were a diplo­ matic success, not a failure. The two entities gained loci of sovereignty when their 33 2 THE CONTEMPORARY PACIFIC· FALL 1993 constitutions went into effect in 1979. The newly established constitutional gov­ ernments exercised their sovereignty in concluding the compact with the United States. By delegating the power of defense to the United States under the com­ pact, the two nations became modern-day "protected states," that is, states that have voluntarily ceded part of their sovereign powers to another nation. As pro­ tected states, the Federated States of Micronesia and the Republic of the Marshall Islands can be considered not only sovereign but independent, despite the seeming limitations of the compact and its subsidiary agreements.